Presidential Power and the Do-Nothing Congress

Earlier this week, President Trump elected to repeal the Deferred Action for Childhood Arrivals (DACA) policy established by the Obama administration in 2012. Simultaneously, he stayed this repeal for 6 months, so that Congress could have time to figure out what it wants to do with the people affected.

I refer to DACA as “policy” rather than “law” here, because it is not law in the traditional sense. It was not enacted by Congress. It was drafted and implemented unilaterally by the executive branch, after Congress repeatedly chose not to enact the DREAM Act. The repeal of DACA affects about 800,000 people who entered the US illegally as under-16 minors, have been here since 2007, have maintained good behavior, and have been renewing their applications for this exemption from deportation every two years. As judge Andrew Napolitano noted, in considering them vs the totality of illegal immigrants in America, “they are not problematic.”

On its face, the deportation of these people would be a cruel act. Many probably have no roots in their countries of origin, many who arrived as children might not even have more than an elementary-school knowledge of their “mother tongue,” and they’re contributing members of our society. But, there’s much to consider in this action that is obvious to see for those who wish to look.

Before I get into that, I just want to note that there are many who either don’t want to look or don’t want others to look. Consider this list of headlines that a Google search for “Trump repeals DACA” offered on the first page:

For the sake of completeness, it’s worth noting that CNN, the NYTimes, Forbes, and the LA Times also appeared on that first Google results page, but their headlines were neutral.

What do these headlines all do? They imply that the repeal is a fait accompli, with neither acknowledgment that Congress has half a year to write a proper law nor Trump’s tweeted mention that, should Congress fail to act, he “will revisit this issue!”

Attacking what are tantamount to the Left’s poster-children in the illegal immigration debate seems like a stupid, bizarre, and poorly chosen decision on the President’s part, and if one is of the mind that Trump is an impulsive moron who follows his whims without any tether, one would relish this unforced error. But, the 6 month delay and promise of “revisiting” suggest this is a tactical gambit.

As low as Trump’s polls are, Congress’s are even lower, and I can’t find fault with the latter. Congress has passed no legislation of major import in this session, despite all the promises to the Republican voter base that, once handed the unilateral reins of power, all sorts of good things would happen. Trump is a deal-maker, not an ideologue, and I’m certain he’s frustrated by the lack of “deals,” especially on health care. With tax reform as his next legislative priority, and with early indications that Congress is going to stall on this one as well, Trump may have decided to pull out the cattle-prod and give the GOP lawmakers on the Hill a couple good jolts. More evidence of this is his recent “shocking betrayal” of the party in making a deal on the debt ceiling and Hurricane Harvey aid with Democratic leadership.

If viewed in this light, the DACA decision goes from “what is he thinking?” to low-hanging fruit. DACA was facing legal challenges from 9 state attorneys general and one governor, and US Attorney General Jeff Sessions opined that the policy was unconstitutional and would be difficult to defend in court.

Sessions is right. DACA, which was a policy instituted despite the law of the land, appears to violate the “faithfully execute” clause of the Constitution, and a court challenge, which would take years to unfold, would leave the “DREAMers” in legal limbo. So, with this move, Trump forestalls a divisive and problematic court battle, puts the ball in the do-nothing GOP Congress’s court, and leaves himself in a win-win position. Yes, a win-win. If Congress does nothing, Trump can write policy to spare the DREAMers, and I’d be shocked if he didn’t mix in some language that went after the “problematic” illegals at the same time. Doing so would make it difficult for either the Left or the Right to challenge him. If Congress actually gets off its collective ass and writes proper immigration reform, the problematic legal challenges (from both directions) go away, he gets a win, the GOP can say it did something, and a precedent will have been set.

I’ve often been a Trump critic on these pages, and have dubbed him the “untethered orange id.” But. while it’s very tempting to categorically and perpetually dismiss him as a fool or a buffoon, it is a fact that he’s proven such criticisms wrong as often as he’s shown them right, and it’s foolish in its own right to underestimate someone who managed, against all odds, to win the Presidency.

Of course, this reading of the tea leaves could be wrong, and what I see as a tactical maneuver could actually be the piling up of contradictory whims. I think I’m right, though. Only time will tell.

I am twice-retired, a former rocket engineer and a former small business owner. At the very least, it makes for interesting party conversation. I'm also a life-long libertarian, I engage in an expanse of entertainments, and I squabble for sport.

Nowadays, I spend a good bit of my time arguing politics and editing this website.

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I agree with everything you said about the DACA issue, except the part about it being Trump’s plan.

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5 months 10 days ago

This Week's Poll

Are the November 2017 election results a referendum on Trump?

Yes, they reflect a deep unpopularity that will carry the Democrats to major gains in 2018.

Yes, but they don't predict 2018.

Somewhat, but local conditions were more of a factor.

Not really. The wins were in Democratic strongholds, and don't reflect the broader national mood.